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MIGRATION AMENDMENT REGULATIONS 2003 (NO. 6) 2003 NO. 224
Subsection 504(1) of the Migration Act 1958 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
In addition, regulations may be made pursuant to the following provisions:
• subsection 29(2) of the Act provides that a visa to travel to, enter and remain in Australia may be one to travel to and enter Australia during a prescribed or specified period, and if the holder travels to and enters during that period, remain in Australia during a prescribed or specified period or indefinitely;
• subsection 30(2) of the Act provides that a visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a temporary visa, to remain during a specified period, or until a specified event happens or while the holder has a specified status; and
• subsection 31(3) of the Act provides that the Regulations may prescribe criteria for a visa or visas of a specified class.
The purpose of the regulations is to amend the Migration Regulations 1994 (the Migration Regulations) with respect to certain requirements for the grant of protection visas. They reflect the Government's decision to urgently implement policy.
The regulations effect changes to the Migration Regulations to:
• require applicants for a Protection (Class XA) visa to have held a Subclass 785 (Temporary Protection) visa or a Subclass 451 (Secondary Movement Relocation (Temporary)) visa before they can be granted a permanent Protection visa, unless this requirement is waived by the Minister in public interest circumstances;
• enable Subclass 785 (Temporary Protection), 451 (Secondary Movement Relocation (Temporary)) and 447 (Secondary Movement Offshore Entry (Temporary)) visas to be granted for varying periods of time, less than the periods currently prescribed; and
• exempt all Subclass 785 (Temporary Protection) visa (TPV) holders who were granted a TPV prior to 27 September 2001 from having to satisfy the "seven day rule" (clause 866.215), provided the above amendments are in effect. The seven day rule provides that applicants who have held a TPV since last entering Australia must not have, since leaving their home country, resided for a continuous period of at least 7 days in a country where they could have sought effective protection, in order to be eligible for the grant of a permanent Protection visa.
Details of the regulations are set out in the Attachment.
The Act specifies no conditions that need to be met before the power to make the proposed regulations may be exercised.
The regulations commence on gazettal.
0301688A-030819Z
ATTACHMENT
This regulation provides that these Regulations are the Migration Amendment Regulations 2003 (No. 6).
This regulation provides that these Regulations commence on gazettal.
This regulation provides that Schedule 1 to these Regulations amends the Migration Regulations 1994 (the Migration Regulations).
This regulation provides that the amendments made by items [1], [2], [3] and [8] apply to an application for a visa:
• made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958), before commencement of these amendments; and
Item [1] - Paragraph 447.511(b)
This item substitutes paragraph 447.511(b) of Part 447 of Schedule 2 to the Migration Regulations with new paragraph 447.511(c) and sets out when a Subclass 447 (Secondary Movement Offshore Entry (Temporary)) visa is in effect.
This item provides that a Subclass 447 visa permits the holder to remain in Australia until:
• if the holder applies for a Protection (Class XA) visa after the Subclass 447 visa is granted and while the Subclass 447 visa is in effect, the day on which the Protection (Class XA) visa application is finally determined or withdrawn; and
• in any other case, the Subclass 447 visa permits the holder to remain in Australia until the end of 36 months after the Subclass 447 visa is granted or a period of time less than 36 months that is specified by the Minister in relation to the visa holder.
The purpose of this amendment is to enable the Minister to grant an applicant a Subclass 447 visa for a period of time up to 36 months in duration.
Where an applicant for a Subclass 447 visa has a member of the family unit in Australia who already holds a Subclass 447 visa, Subclass 451 (Secondary Movement Relocation (Temporary)) visa or a Subclass 785 (Temporary Protection) visa, the Minister, as a result of these amendments and in the interests of family unity, may align the end-date of the Subclass 447 visa with the end-date of the visa held by the member of the family unit. As a result, family members' applications for a further visa can be considered and finalised together.
Item [2] - Paragraph 451.511(b)
This item substitutes paragraph 451.511(b) of Part 451 of Schedule 2 to the Migration Regulations with new paragraph 451.511(c) and sets out when a Subclass 451 (Secondary Movement Relocation (Temporary)) visa is in effect.
This item provides that a Subclass 451 visa permits the holder to remain in Australia until:
• if the holder applies for a Protection (Class XA) visa after the Subclass 451 visa is granted and while the Subclass 451 visa is in effect, the day on which the Protection (Class XA) visa application is finally determined or withdrawn; and
• in any other case, the Subclass 451 visa permits the holder to remain in Australia until the end of 60 months after the Subclass 451 visa is granted or a period of time less than 60 months that is specified by the Minister in relation to the visa holder.
The purpose of this amendment is to enable the Minister to grant an applicant a Subclass 451 visa for a period of time up to 60 months in duration.
Where an applicant for a Subclass 451 visa has a member of the family unit in Australia who already holds a Subclass 451 visa, Subclass 447 (Secondary Movement Offshore Entry (Temporary)) visa or a Subclass 785 (Temporary Protection) visa, the Minister, as a result of these amendments and in the interests of family unity, may align the end-date of the subclass 451 visa with the end-date of the visa held by the member of the family unit. As a result, family members' applications for a further visa can be considered and finalised together.
This item substitutes clause 785.511 of Part 785 of Schedule 2 to the Migration Regulations with new clause 785.511 and sets out when a Subclass 785 (Temporary Protection) visa is in effect. The effect is to omit paragraph 785.511(a) and replace it with new paragraph 785.511(c).
Paragraph 785.511(b) provides that a (Class XC) Subclass 785 visa granted on the basis of an application for a Protection (Class XA) visa, permits the holder to remain in, but not re-enter, Australia until:
• the day on which the application mentioned in paragraph 1.08F(1)(d) is finally determined or withdrawn.
No changes are made to paragraph 785.511(b).
New paragraph 785.511(c) provides that a Subclass 785 visa granted on the basis of an application for a Protection (Class XA) visa, permits the holder to remain in, but not re-enter, Australia until:
• if the holder applies for a Protection (Class XA) visa after the Subclass 785 visa is granted and while the Subclass 785 visa is in effect, the day on which the Protection (Class XA) visa application is finally determined or withdrawn; and
• in any other case, the Subclass 785 (Class XA) visa permits the holder to remain in Australia until the end of 36 months after the Subclass 785 visa is granted or a period of time less than 36 months that is specified by the Minister in relation to the visa holder.
The purpose of this amendment is to enable the Minister to grant an applicant a Subclass 785 (Temporary Protection) (Class XA) visa for a period of time up to 36 months in duration.
Where an applicant for a Subclass 785 visa has a member of the family unit in Australia who already holds a Subclass 785 visa, Subclass 447 (Secondary Movement Offshore Entry (Temporary)) visa or a Subclass 451 (Secondary Movement Relocation (Temporary)) visa, the Minister, as a result of these amendments and in the interests of family unity, may align the end-date of the Subclass 785 visa with the end-date of the visa held by the member of the family unit. As a result, family members' applications for a further visa can be considered and finalised together.
Item [4] - Clauses 866.212, 866.213 and 866.214
This item substitutes clauses 866.212, 866.213 and 866.214 of Part 866 of Schedule 2 to the Migration Regulations with new clauses 866.212, 866.213 and 866.214.
New clause 866.212 is one of the time of application criteria that must be satisfied by an applicant seeking to be granted a Subclass 866 (Protection) visa. The effect of this item is to amend Subclauses 866.212(1) and (2) to omit subclause 866.212(3) and insert new subclause 866.212(5).
New subclause 866.212(1) provides that if an applicant meets the requirements of paragraph 866.211(a), that is, makes specific claims under the Refugees Convention, the applicant must be:
• immigration cleared and
• meet the requirements of subclause 2 (subject to subclause 5) or subclause (4).
This is a technical amendment consequential to new subclauses 866.212(2) and (5). It does not alter the intent of the provision.
New subclause 866.212(2) provides that an applicant will satisfy this subclause if:
• the applicant has been granted a Subclass 785 (Temporary Protection) visa or a Subclass 451 (Secondary Movement Relocation (Temporary)) visa (irrespective of whether or not the applicant still holds the visa); and
• the Subclass 785 visa or Subclass 451 visa last granted to the applicant has not been cancelled; and
• the applicant has not left Australia since they were granted a Subclass 785 visa or Subclass 451 visa; and
• since last entering Australia the applicant has not held a Subclass 447 (Secondary Movement Offshore Entry (Temporary)) visa.
The purpose of new subclause 866.212(2) is to limit access to a permanent Subclass 866 (Protection) visa to circumstances where an applicant is the holder of a temporary Subclass 451 or a Subclass 785 visa and since last entering Australia has not held a Subclass 447. The requirement that an applicant not have held a Subclass 447 visa since last entering Australia is not new.
Subclause 866.212(4) provides that an applicant will satisfy this subclause if the applicant:
• has been granted a Temporary Safe Haven (Class UJ) visa (irrespective of whether or not the applicant still holds this visa); and
• has not left Australia since the grant of the Temporary Safe Haven (Class UJ) visa.
No changes are made to subclause 866.212(4).
New subclause 866.212(5) provides that the Minister may waive the requirements in subparagraph 866.212(1)(b)(i), that is, to meet the requirements in subclause 866.212(2), if the Minister is satisfied that it is in the public interest to do so, and provided that at the time of the applicant's last entry to Australia, the applicant was the holder of a visa that:
• was granted in the applicant's name; and
• was in effect; and
• was not counterfeit; and
• had not been altered by someone who did not have the authority to do so; and
• had not been obtained using a fraudulent document; and
• for an applicant who held a valid passport at the time of the applicant's last entry to Australia, the passport was issued in the applicant's name.
The purpose of new subclause 866.212(5) is to enable the Minister to provide an applicant for a Protection (Class XA) visa with access to a permanent Subclass 866 (Protection) visa if it is in the public interest to do so and provided the applicant meets the requirements in paragraphs 866.212(5)(b) and (c). This allows a waiver of the requirements in new subclause 866.212(2).
New clause 866.213 provides that if an applicant meets the requirements of paragraph 866.211(b), that is, claims to be a member of the same family unit as the person making specific claims under the Refugees Convention ("the claimant"), the claimant must meet the requirements of clause 866.212. This is a technical amendment consequential to the amendments made to clause 866.212. It does not alter the effect of the provision.
New subclause 866.214(1) provides that if an applicant meets the requirements of paragraph 866.211(b), that is, claims to be a member of the same family unit as the claimant, the applicant must not have held a Subclass 447 visa since last entering Australia. New subclause 866.214(2) provides that the Minister has the ability to waive this requirement where the Minister is satisfied that it is in the public interest to do so.
The purpose of new clause 866.214 is to prevent a person who claims to be a member of the same family unit as the claimant and who has held a Subclass 447 visa since last entering Australia from accessing a permanent Subclass 866 (Protection) visa unless the Minister is satisfied that it is in the public interest to do so. This is a technical amendment consequential to the amendment made to paragraph 866.212(2)(d), which applies to the claimant.
Item [5] - Clause 866.228
This item substitutes clause 866.228 of Part 866 of Schedule 2 to the Migration Regulations with new clause 866.228. New clause 866.228 provides that applicants who have held a Subclass 785 (Temporary Protection) visa since last entering Australia must have held this visa or multiple Subclass 785 visas for the lesser of:
• a continuous period of 30 months; and
• a shorter period specified in writing by the Minister in relation to that applicant.
This amendment enables an applicant for a Protection (Class XA) visa who has held one or multiple Subclass 785 visas for either 30 continuous months or a lesser period specified in writing by the Minister in relation to the applicant to be eligible for the grant of a Subclass 866 (Protection) visa, provided the other criteria are satisfied.
Item [6] - Clause 866.228A
This item amends clause 866.228A of Part 866 of Schedule 2 to the Regulations. As amended clause 866.228A provides that applicants who have held a Subclass 451 visa since last entering Australia must have held this visa for the lesser of:
• a continuous period of 54 months; and
• a shorter period specified in writing by the Minister in relation to that applicant.
This amendment enables applicants for a Protection (Class XA) visa who have held a Subclass 451 (Secondary Movement Relocation (Temporary)) visa since last entering Australia for a continuous period of 54 months or a lesser period specified in writing by the Minister, in relation to the applicant, to be eligible for the grant of a Subclass 866 (Protection) visa, provided other criteria are satisfied.
This amendment clarifies the policy intention that this clause applies to a person who has, since last entering Australia, held a Subclass 451 visa.
This item inserts new clause 866.228B into Part 866 of Schedule 2 to the Migration Regulations. New clause 866.228B provides that applicants who have held one or more Subclass 785 (Temporary Protection) visas and a Subclass 451 (Secondary Movement Relocation (Temporary)) visa since last entering Australia must have held these visas for the lesser of:
• a continuous period of 54 months; and
• a shorter period specified in writing by the Minister in relation to the applicant.
This amendment enables people who have held both a Subclass 451 visa and one or more Subclass 785 visas for a continuous period of 54 months or a lesser period specified in writing by the Minister in relation to the applicant, to be eligible for the grant of a Subclass 866 (Protection) visa, provided other criteria are satisfied.
This amendment is consequential to the new requirement in subclause 866.212(2) inserted by these Regulations that provide that all permanent Protection visa applicants must hold either a Subclass 785 or 451 visa.
This item inserts new clause 866.231 into Part 866 of Schedule 2 to the Migration Regulations. New subclause 866.231(1) provides that subclause 866.215(1) does not apply to applicants who were granted a Subclass 785 (Temporary Protection) visa prior to 27 September 2001 if subparagraphs 447.511(c)(ii), 451.511(c)(ii) and 785.511(c)(ii), subclause 866.212(5) and clause 866.228B as in force when this subclause commences are in force at the time of decision.
The purpose of new subclause 866.231(1) is to exempt applicants who were granted a Subclass 785 visa prior to 27 September 2001 from the "seven day rule" set out in subclause 866.215(1) if all of the following provisions are in effect as they exist at the time of commencement: subparagraphs 447.511(c)(ii), 451.51(c)(ii) and 785.511(c)(ii), subclause 866.212(5) and clause 866.228B.
New subclause 866.231(2) provides that subclause 866.215(1) does not apply to an applicant who holds a Subclass 785 visa and who since last entering Australia has held a Subclass 451 (Secondary Movement Relocation (Temporary)) visa if subparagraphs 447.511(c)(ii), 451.51(c)(ii) and 785.511(c)(ii), subclause 866.212(5) and clause 866.228B as in force when this subclause commences are in force at the time of decision. This amendment is consequential to the new requirement in subclause 866.212(2) inserted by these Regulations that provides that all Permanent Protection visa applicants must hold either a Subclass 451 or 785 visa.
The purpose of new subclause 866.231(2) is to exempt applicants who have held a Subclass 451 visa since last entering Australia and who hold a Subclass 785 visa from the seven day rule set out in subclause 866.215(1) if all of the following provisions are in effect as they exist at the time of commencement: subparagraphs 447.511(c)(ii), 451.51(c)(ii) and 785.511(c)(ii), subclause 866.212(5) and clause 866.228B.